Author 



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Title 






CUss_L.Ql-£„§! 

Book .A.LL..Qi .. 



Imprint 



16—47372-1 GPO 










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OPINION 




J 



ATTORNEY GENERAL STANBEM, 



I'XDKU THE 



RECONSTRUCTION LAWS. 



THE POWERS OF THE MILITARY COMMANDERS, AND FURNISHING A 
GENERAL SUMMARY OF THE DUTIES OF THE BOARD IN THE 
MATTER OF REGISTRATION, AND IN THE MATTER OF 
SUPERINTENDING THE ELECTIONS, AND AS TO 
THE QUALIFICATIONS AND DISQUALIFICA- 
TIONS OF PERSONS APPLYING FOR 
REGISTRATION. 




WASHINGTON: 

GOVE H N M E N T 1' II I \ T ING () F PIC K 
18G7. 







3 



s< 



OPINION 



OF 



ATTORNEY GENERAL STANBERY, 



UNDER THE 



RECONSTRUCTION LAWS, 



DEFINING 



THE POWERS OF THE MILITARY COMMANDERS, AND FURNISHING A 
GENERAL SUMMARY OF THE DUTIES OF THE BOARD IN THE MAT- 
TER OF REGISTRATION, AND IN THE MATTER OF SUPER- 
INTENDING THE ELECTIONS, AND AS TO THE QUALI- 
FICATIONS AND DISQUALIFICATIONS OF PER- 
SONS APPLYING FOR REGISTRATION. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 
18G7. 






J A 



N 5 15 

a or a 



1909 






Attorney General's Office, 

June 12, 18GT. 

The President. 

Sir: On the 24th ultimo, i had the honor to transmit for your con- 
sideration my opinion upon some of the questions arising under the 
reconstruction acts therein referred to. I now proceed to give my 
opinion on the remaining questions, upon which the military com- 
manders require instructions. 

First, as to the powers and duties of these commanders. 

The original act recites in its preamble that ' ; no legal State gov- 
ernments or adequate protection for life or property exist" in those 
ten States, and that "it is necessary that peace and good order should 
be enforced" in those States "until loyal and republican State gov- 
ernments can be legally established." 

The first and second sections divide these States into five military 
districts, subject to the military authority of the United States as 
thereinafter prescribed, and make it the duty of the President to as- 
sign from the officers of the army, a general officer to the command 
of each district, and to furnish him with a military force to perform 
his duties and enforce his authority within his district. 

The third section declares "That it shall be the duty of each offi- 
cer assigned as aforesaid to protect all persons in their rights of per- 
son and property, to suppress insurrection, disorder, and violence, 
and to punish, or cause to be punished, all disturbers of the public 
peace and criminals, and to this end, he may allow local civil tribu- 
nals to take jurisdiction of and try offenders, or, when in his judgment 
it may be necessary for the trial of offenders, he shall have power to 
organize military commissions or tribunals for that purpose; and all 
interference under color of State authority with the exercise of mili- 
tary authority under this act shall be null and void." 

The fourth section provides "That all persons put under military 
arrest by virtue of this act shall be tried without unnecessary delay, 
and no cruel or unusual punishment shall be inflicted; and no sentence 
of any military commission or tribunal hereby anthorized, affecting 
the life or liberty of any person, shall be executed until it is ap- 
proved by the officer in command of the district, and the laws and 
regulations for the government of the army shall not be affected by 
this act, except in so far as they conflict with its provisions: Provi- 
ded, That no sentence of death under the provisions of this act shall 
be carried into effect without the approval of the President." 

The fifth section declares the qualification of voters in all elections, 
as well to frame the new Constitution for each State as in the elec- 
tions to be held under the provisional government until the new State 
Constitution is ratified by Congress, and also fixes the qualifications 
of the delegates to frame the new Constitution. 



The sixth section provides "That until the people of said rebel 
States shall be by law admitted to representation in the Congress of 
the United States, any civil governments which may exist therein 
shall be deemed provisional only, and in all respects subject to the 
paramount authority of the United States at any time to abolish, mod- 
ify, control or supersede the same; and in all elections to any office 
under such provisional governments, all persons shall be entitled to 
vote, and none others, who are entitled to vote under the provisions 
of the fifth section of this act; and no person shall be eligible to any 
office under any such provisional governments who would be disqual- 
fied from holding office under the provisions of the third article of 
said constitutional amendment." 

The duties devolved upon the commanding general by the supple- 
mentary act relate altogether to the registration of voters and the 
elections to be held under the provisions of that act. And as to these 
duties they are plainly enough expressed in the act, and it is not un- 
derstood that any question not heretofore considered in the opinion 
referred to, has arisen or is likely to arise in respect to them. My 
attention, therefore, is directed to the powers and duties of the mil- 
itary commanders under the original act. 

We see clearly enough that this act contemplates two distinct gov- 
ernments in each of these ten States, the one military, the other civil. 
The civil government is recognized as existing at the date of the act. 
The military government is created by the act. Both are provisional, 
and both are to continue until the new State constitution is framed 
and the State is admitted to representation in Congress. When that 
event takes place, both these provisional governments are to cease. 
In contemplation of this act, this military authority and this civil au- 
thority are to be carried on together. The people in these States 
are made subject to both, and must obey both, in their respective 
jurisdictions. 

There is, then, an imperative necessity to define as clearly as pos- 
sible the line which separates the two jurisdictions, and the exact 
scope of the authority of each. 

Now as to the civil authority, recognized by the act as the provi- 
sional civil government, it covered every department of civil juris- 
diction in each of these States. It had all the characteristics and 
powers of a State government, legislative, judicial, and executive, 
and was in the full and lawful exercise of all these powers, except 
only that it was not entitled to representation as a State of the Union. 
This existing government is not set aside; it is recognized more than 
once by the act. It is not in any one of its departments, or as to any 
one of its functions, repealed or modified by this act, save only in the 
qualifications of voters, the qualifications of persons eligible to office, 
the manner of holding elections, and the mode of framing the consti- 
tution of the State. The act does not in any other reaped change 
the provisional government, nor d"<-'s the act authorize the military 
authority t<i change it. The power of further changing it is reserved, 
not granted, and it is reserved to Congress, not delegated to the mil- 
itary commander. 



Congress was not satisfied with the organic law, or constitution, 
under which this civil government was established. That constitu- 
tion was to be changed in only one particular to make it acceptable 
to Congress, and that was in the matter of the elective franchise. 
The pin-pose, the sole object of this act is to effect that change, and 
to effect it by the agency of the people of the State, or such of them 
as are made voters, by means of elections provided for in the act, and 
in the meantime to preserve order and to punish offenders, if found 
necessary, by military commissions. 

We are. therefore, not at a loss to know what powers were pos- 
sessed by the existing civil authority. The only question is upon the 
powers conferred on the military authority. Whatever power is not 
given to the military, remains with the civil government. 

We see, first of all, that each of these States is "made subject to 
the militarv authority of the United States"— not to the military 
authority altogether, but with this express limitation, "as hereinafter 
prescribed." 

We must, then, examine what is thereinafter provided, to find the 
extent and nature of the power granted. 

This, then, is what is granted to the mililtary commanaer: the 
power 'or duty "to protect all persons in their rights of person and 
property, to suppress insurrection, disorder, and violence, and to 
punish, or cause to be punished, all disturbers of the public peace and 
criminals," and he may do this by the agency of the criminal courts 
of the State, or, if necessary, he may have resort to military tribunals. 
This comprises all the powers given to the military commander. 
Here is a general clause making it the duty of the military com- 
mander to give protection to all persons in their rights of person and 
property. Considered by itself, and without reference to the context 
and to other provisions of the act, it is liable, from its generality, to 
be misunderstood. . 

What sort of protection is here meant? What violations ot the 
rights of persons, or of property, are here intended ? In what manner 
is'this protection to be given ? These questions arise at once. 

It appears that some of the military commanders have understood 
this grant of power as all-comprehensive, conferring on them the 
power to remove the executive and judicial officers of the State, and 
to appoint other officers in their places, to suspend the legislative 
power of the State, to take under their control, by officers appointed 
by themselves, the collection and disbursement of the revenues of the 
State, to prohibit the execution of the laws of the State by the agency 
of its appointed officers and agents, to change the existing laws in 
matters affecting purely civil and private rights, to suspend or enjoin 
the execution of the judgments and decrees of the established State 
courts, to interfere in the ordinary administration of justice in the 
State 'courts, by prescribing new qualifications for jurors, and to 
change, upon the ground of expediency, the existing relations of the 
parties to contracts, giving protection to one party by violating the 
rights of the other party. 

I feel confident that these military officers, in all they have done, 



have supposed that they had full warrant for their action. Their 
education and training have not been of the kind to fit them for the 
delicate and difficult task of giving construction to such a statute as 
that now under consideration. They require instruction, and nearly 
all of them have asked for instruction, to solve their own doubts, and 
to furnish to them a safe ground for the performance of their duties. 

There can be no doubt as to the rule of construction according to 
which we must interpret this grant of power. It is a grant of power 
to military authority, over civil rights and citizens, in time of peace. 
It is a new jurisdiction, never granted before, by which, in certain 
particulars and for certain purposes, the established principle that the 
military shall be subordinate to the civil authority, is reversed. The 
rule of construction to be applied to such a grant of power is thus 
stated in Dwarris on Statutes, page 652: " A statute creating a new 
jurisdiction ought to be construed strictly." 

Guided by this rule, and in the light of other rules of construction 
familiar to every lawyer, especially of those which teach us that, in 
giving construction to single clauses, we must look to the context and 
to the whole law, that general clauses are to be controlled by parti- 
cular clauses, and that such construction is to be put on a special 
clause as to make it harmonize with the other parts of the statute, so 
as to avoid repugnancy. I proceed to the construction of this part of 
the act. 

To consider, then, in the first place, the terms of the grant. It is 
of a power to protect all persons in their rights of person and pro- 
perty. It is not a power to create new rights, but only to protect 
those which exist and are established by the laws under which these 
people live. It is a power to preserve, not to abrogate; to sustain 
the existing frame of social order and civil rule, and not a power to 
introduce military rule in its place. In effect, it is a police power, 
and the protection, here intended, is protection of persons and pro- 
perty against violence, unlawful force, and criminal infraction. It is 
given to meet the contingency recited in the preamble, of a want, of 
"adequate protection for life and property;" and the necessity also 
recited, "that peace and good order should be enforced." 

This construction is made more apparent when we look at the im- 
mediate context, and see in what mode, and by what agency, this 
protection is to be secured. This duty, or power, of protection is to 
be performed by the suppression of insurrection, disorder, and vio- 
lence, and by the punishment, either by the agency of the State 
courts, or by military commissioners, when necessary, of all disturbers 
of tin; public peace and criminals; and it is declared that all interfer- 
ence, under color of State authority, with the exercise of this military 
authority, shall he null and void. 

The next succeeding clause provides for a speedy trial of the of- 
fender, forbids the infliction of cruel and unusual punishment, and 
requires that sentences of these military courts, which involve the 
liberty or life of the accused, shall have the approval ol the com- 
manding general, and. as to a sentence of death, the approval of the 
President, before execution . 



All these special provisions have reference to the preservation of 
order, and protection against violence and crime. They touch no 
other department or function of the civil administration, save only its 
criminal jurisdiction, and even as to that the clear meaning of this 
act is, that it is not to be interfered with by the military authority, 
unless when a necessity for such interference may happen to arise. 

I see no authority, nor any shadow of authority, for interference 
with any other courts or any other jurisdiction, than criminal courts 
in the exercise of criminal jurisdiction. The existing civil authority 
in all its other departments, legislative, executive, and judicial, is 
left untouched. There is no provision, even under the plea of neces- 
sity, to establish, by military authority, courts or tribunals for the 
trial of civil cases, or for the protection of such civil rights of person 
or property as come within the cognizance of civil courts as contra- 
distinguished from criminal courts. In point of fact there was no 
foundation for such a grant of power, for the Civil Rights act, and 
the Freedman's Bureau act, neither of which is superseded by this 
act, made ample provision for the protection of all merely civil rights 
where the laws or courts of these States might fail to give full, im- 
partial protection. 

I find no authority anywhere in this act for the removal by the uni- 
tary commander, of the proper officers of a State, either executive or 
judicial, or the appointment of persons to their places. Nothing short 
of an express grant of power, would justify the removal or the ap- 
pointment of such an officer. There is no such grant expressed or 
even implied. On the contrary the act clearly enough forbids it. 
The regular State officials, duly elected and qualified, are entitled to 
hold their offices. They, too, have rights which the military com- 
mander is bound to protect, not authorized to destroy. 

We find in the concluding clause of the sixth section of the act that 
these officials are recognized, and express provision is made to per- 
petuate them. It is enacted that "in all elections to any office un- 
der such provisional governments, all persons shall be entitled to 
vote, and none others, who are entitled to vote under the provisions 
of the fifth section of this act; and no person shall be eligible to any 
office under such provisional governments, who would be disqualified 
from holding office under the provisions of this act-" 

This provision not only recognizes all the officers of the provisional 
governments, but, in case of vacancies, very clearly points out how 
they are to be filled; and that happens to be in the usual way, by the 
peJple, and not by any other agency or any other power, either State 
or federal, civil or military. 

I find it impossible under the provisions of this act to comprehend 
such an official as a governor of one of these States appointed to 
office by one of these military commanders. Certainly he is not the 
governor recognized by the laws of the State, elected by the people 
of the State, and clothed as such with the chief executive power. 
\or is he appointed as a military governor for a State which has no 
lawful governor, under the pressure of an existing necessity, to exer- 
cise powers at large. The intention, no doubt, was to appoint him 



8 

to fill a vacancy occasioned by a military order, and to put him in the 
place of the removed governor, to execute the functions of the office 
as provided by law. The law takes no cognizance of such an official, 
and he is clothed with no authority or color of authority. 

What is true as to the governor is equally true as to all the other 
legislative, executive, and judicial officers of the State. If the mili- 
tary commander can oust one from his office, he can oust them all. 
If he can fill one vacancy he can fill all vacancies, and thus usurp all 
civil jurisdiction into his own hands, or the hands of those who hold 
their appointments from him and subject to his power of removal, 
and thus frustrate the very right secured to the people by this act. 
Certainly this act is rigorous enough in the power which it gives. 
With all its severity, the right of electing their own officers is still 
left with the people, and it must be preserved. 

I must not be understood as fixing limits to the power of the mili- 
tary commander in case of an actual insurrection or riot. It may 
happen that an insurrection in one of these States may be so general 
and formidable as to require the temporary suspension of all civil 
government, and the establishment of martial law in its place. And 
the same thing may be true as to local disorder or riot in reference 
to the civil government of the city or place where it breaks out. 
Whatever power is necessary to meet such emergencies, the military 
commander may properly exercise. I confine myself to the proper 
authority of the military commander where peace and order prevail. 
When peace and order do prevail, it is not allowable to displace the 
civil officers and appoint others in their places under any idea that 
the military commander can better perform his duties and carry out 
the general purposes of the act by the agency of civil officers of his 
own choice rather than by the lawful incumbents. The act gives 
him no right to resort to such agency, but does give him the right to 
have "a sufficient military force " to enable him "to perform his 
duties and enforce his authority within the district to which he is as- 
signed." 

In the suppression of insurrection and riot, the military commander 
is wholly independent of the civil authority. So, too, in the trial 
and punishment of criminals and offenders, he may supersede the 
civil jurisdiction. His power is to be exercised in these special emer- 
gencies, and the means are put into his hands by which it is to be 
exercised, that is to say, "a sufficient military force to enable such 
officer to perform his duties and enforce his authority/' and mili- 
tary tribunals of his own appointment to try and punish offenders. 
These are strictly military powers, to be executed by military author- 
ity, not by the civil authority or by civil officers appointed by him 
to perform ordinary civil duties. 

If these emergencies do not happen, if civil order is preserved, and 
criminals are duly prosecuted by the regular criminal courts, t ho mil- 
itary power though presenl must remain passive. Its proper func- 
tion is to preserve the peace, to acl promptly when the peace is bro- 
ken, and restore order. When that is done and the civil authority 
may again Bafelj resume its functions, the military power becomes 
again passive, but on guard and watchful. 



This, in my judgment, is the whole scope of the military power 
conferred by' this act, and in arriving at this construction of the act, 
I have not found it necessary to resort to the strict construction which 

is allowable. 

What has been said indicates my opinion as to any supposed power 
of the military commander to change or modify the laws in force. 
The military commander is made a conservator of the peace, not a 
legislator. His duties are military duties, executive duties, not leg- 
islative duties. He has no authority to enact or declare a new code 
of laws for the people within his district under any idea that he can 
make a better code than the people have made for themselves. The 
public policy is not committed to his discretion. The Congress, 
which passed this act undertook in certain grave particulars to change 
these laws, and these changes being made, the Congress saw no fur- 
ther necessity of change, but were content to leave all the other laws 
in full force, but subject to this emphatic declaration, that as to these 
laws and such future changes as might be expedient, the question of 
expediency and the power to alter, amend or abolish, was reserved 
for "the paramount authority of the United States at any time to 
abolish, modifv, control, or supersede the same." Where, then, 
does a military commander find his authority " to abolish, modify, 
control, or supersede" any one of these laws? 

The enumeration of the extraordinary powers exercised by the mil- 
itary commanders in some of the districts would extend this opinion 
to an unreasonable length. A few instances must suffice. 

In one of these districts the governor of a State has been deposed 
under a threat of military force, and another person, called a gover- 
nor, has been appointed by the military commander to fill his place. 
Thus presenting the strange spectacle of an official entrusted with 
the chief power to execute the laws of the State whose authority is 
not recognized by the laws he is called upon to execute. 

In the same district the judge of one of the criminal courts of the 
State has been summarily dealt with. The act of Congress does give 
authority to the militarv commander, in cases of necessity, to transfer 
the jurisdiction of a criminal court to a military tribunal. That being 
the specific authority over the criminal courts given by the act, no 
other authority over them can be lawfully exercised by the military 
commander. But in this instance the judge has, by military order 
been ejected from his office, and a private citizen has been appointed 
judge in his place, by military authority, and is now in the exercise 
of criminal jurisdiction "overall crimes, misdemeanors, and offences, 
committed within the territorial jurisdiction of the court. This mili- 
tary appointee is certainly not authorized to try any one for any 
offence as a member of a military tribunal, and he has just as little 
authority to try and punish any offender as a judge ot a criminal court 

of the State. • . . . 

It happens that this private citizen, thus placed on the bench, is 
to sit as the sole judge in a criminal court whose jurisdiction extends 
to cases involving the life of the accused. If he has any judicial 
power in anv case, he has the same power to take cognizance ot cap- 



10 

ital cases, and to sentence the accused to death, and order his exe- 
cution . A strange spectacle ! where the judge and the criminal may 
very well "change places;" for if the criminal has unlawfully taken 
life, so too does the judge. This is the inevitable result, for the onlv 
tribunal the only judges, if they can be called judges, which a mili- 
tary commander can constitute and appoint under'this act, to inflict 
the death penalty, is a military court composed of a board, and called 
in the act a "military commission." 

I see no relief for the condemned against the sentence of this agent 
of the military commander. It is not the sort of court whose sentence 
of death must be first approved by the commander and finally by the 
President; for that is allowed only where the sentence is pronounced 
by a "military commission." Nor is it a sentence pronounced by the 
rightful court of the State, but by a court, and by adjudge, not clothed 
with authority under the laws of the State, but constituted by the 
military authority. As the representative of this military authority, 
this act forbids interference "under color of State authority" with 
the exercise of his functions. 

In another one of these districts a military order commands the 
governor of the State to forbid the reassembling of the legislature, 
and thus suspends the proper legislative power of the State". In the 
same district an order has been issued "to relieve the treasurer of 
the State from the duties, bonds, books, papers, &c, appertaining to 
his office," and to put an " assistant quartermaster of United States 
volunteers" in place of the removed treasurer; the duties of which 
quartermaster-treasurer are thus summed up: He is to make to the 
headquarters of the district " the same reports and returns required 
from the treasurer, and a monthly statement of receipts and expendi- 
tures; he will pay all warrants for salaries which may be, or become, 
due, and legitimate expenditures for the support of the penitentiary' 
State asylum, and the support of the provisional State government'; 
but no scrip or warrants for outstanding debts of other kind than 
those specified will be paid without special authority from these head- 
quarters. He will deposit funds in the same manner as though they 
were those of the United States." 

In another of these districts a body of military edicts, issued in 
general and special orders regularly numbered, and in occasional cir- 
culars, have been promulgated, which already begin to assume the 
dimensions of a code. These military orders modify the existing law 
in the remedies for the collection of debts, the enforcement of judg. 
Hunts and decrees for the payment of money, staying proceedings 
instituted, prohibiting, in certain cases, the right to bring suit, en- 
joining proceedings on execution for the term of twelve months, 
giving new liens in certaiu eases, establishing homestead exemptions,' 
declaring what shall be a legal tender, abolishing in certain cases the 
remedy by foreign attachment, abolishing bail "as heretofore author- 
ized in cases ex contractu, but not in "other cases, known as actions 
exddicto," and changing, in several particulars, the existing laws as 
to the punishmenl of crimes, and directing that the crimes' referred 
to "shall be punished by imprisonment at hard labor for a term not 



11 

exceeding ten years nor. less than two years, in the discretion of the 
court having jurisdiction thereof." One of these general orders, 
being number ten of the series, contains no less than seventeen sec- 
tions embodying the various changes and modifications which have 
been recited . 

The question at once arises in the mind of everv lawyer, what 
power or discretion belongs to the court having jurisdiction of any 
of these offences, to sentence a criminal to any other or different pun- 
ishment than that provided by the law which vests him with juris- 
diction. The concluding paragraph of this order, No. 10, is in these 
words: " Any law or ordinance heretofore in force in North Carolina 
or South Carolina, inconsistent with the provisions of this general or- 
der, are hereby suspended and declared inoperative." Thus an- 
nouncing, not only a power to suspend the laws, but to declare them 
generally inoperative, and assuming full powers of legislation by the 
military authority. 

The ground upon which these extraordinary powers are based is 
thus set forth in military order No. 1, issued in this district: '• The 
civil government now existing in North Carolina and South Carolina, 
is provisional only, and in all respects subject to the paramount au- 
thority of the United States at any time to abolish, modify, control, 
or supersede the same." Thus far the provisions of the act of Con- 
gress are well recited. What follows is in these words: li Local laws 
and municipal regulations not inconsistent with the Constitution and 
laws of the United States, or the proclamations of the President, or 
with such regulations as are or may be prescribed in the orders of 
the commanding general, are hereby declared to be in force, and in 
conformity therewith, civil officers are hereby authorized to continue 
the exercise of their proper functions, and will be respected and 
obeyed by the inhabitants." 

This construction of his powers under the act of Congress places 
the military commander on the same footing as the Congress of the 
United States. It assumes that "the paramount authority of the 
United States at any time to abolish, modify, control, or supersede," 
is vested in him as fully as it is reserved to Congress. He deems 
himself a representative of that paramount authority. He puts him- 
self upon an equality with the law-making power of the Union, the 
only paramount authority in our government, so far, at least, as the 
enactment of laws is concerned. He places himself on higher 
ground than the President, who is simply an executive officer. He 
assumes, directly or indirectly, all the authority of the State, legis- 
lative, executive, and judicial, and in effect declares " I am the State." 

I regret that I find it necessary to speak so plainly of this assump- 
tion of authority. I repeat what I have heretofore said, that I do 
not doubt that all these orders have been issued under an honest be- 
lief that they were necessary or expedient, and fully warranted by 
the act of Congress. There may be evils and mischiefs in the laws 
which these people have made for themselves through their own leg- 
islative bodies, which require change: but none of these can be so 
intolerable as the evils and mischiefs which must ensue from the sort 



12 

of remedy applied. One can plainly see what will be the inevitable 
coni usion and disorder which such disturbances of the whole civil 
policy of the State must produce. If these military edicts are al- 
lowed to remain even during the brief time in which this provisional 
military government may be in power, the seeds will be sown for 
such a future harvest of litigation as has never been inflicted upon 
any other people. 

There is, in my opinion, an executive duty to be performed here, 
which cannot safely be avoided or delayed. For notwithstanding 
the paramount authority assumed by these commanders, they are not, 
even as to their proper executive duties, in any sense, clothed with 
a paramount authority. They are, at last, subordinate executive 
officers. They are responsible to the President for the proper exe- 
cution of their duties, and upon him rests the final responsibility. 
They are his selected agents. His duty is not all performed by se- 
lecting such agents as he deems competent; but the duty remains 
with him to see to it that they execute their duties faithfully and ac- 
cording to law. 

It is true that this act of Congress only refers to the President in 
the matter of selecting and appointing these commanders, and in the 
matter of their powers and duties under the law, the act speaks in 
terms directly to them; but this does not relieve them from their re- 
sponsibility to the President, nor does it relieve him from the consti- 
tutional obligation imposed upon him to see that all "the laws be 
faithfully executed." 

It can scarcely be necessary to cite authority for so plain a proposi- 
tion as this. Nevertheless, as we have a recent decision completely 
in point, I may as well refer to it. 

Upon the motion made by the State of Mississippi before the Su- 
preme Court of the United States at its late term, for leave to file a 
bill against the President of the United States, to enjoin him against 
executing the very acts of Congress now under consideration, the 
opinion of the court upon dismissing that motion, and it seems to 
have been unanimous, was delivered by the Chief Justice. I make 
the following quotation from the opinion: " Very different is the duty 
of the President in the exercise of the power to see that the laws are 
faithfully executed, and among those laws the acts named in the bill. 
By the first of these acts he is required to assign generals to com- 
mand in the several military districts, and to detail sufficient military 
force to enable such officers to discharge their duties under the law. 
By the supplementary act, other duties are imposed on the several 
commanding generals, and their duties must necessarily be performed 
under the supervision of the President as Commander-in-Chief. The 
duty thus imposed on the President is in no justsense ministerial. It 
is purely executive and political." 

Certain questions have been propounded from one of these mili- 
tary districts touching the ('(instruction of the power of the military 
commander to constitute military tribunals lor the trial of offenders, 
which I w ill next consider. 

Whilst the ad does not in terms displace the regular criminal courts 
of the Slate, it does give the power to the military commander, when . 






13 

in his judgment a necessity arises, to take the administration of the 
criminal law into his own hands, and to try and punish offenders by 
means of military commissions. 

In giving construction to this power, we must not forget the recent 
and authoritative exposition given by the Supreme Court of the Uni- 
ted States as to the power of Congress to provide for military tribu- 
nals for the trial of citizens in time of peace, and to the emphatic dec- 
laration as to which there was no dissent or difference of opinion 
among the judges, that such a power is not warranted by the Con- 
stitution. A single extract from the opinion of the minority as de- 
livered by the Chief Justice will suffice. " We by no means assert 
that Congress can establish and apply the laws of war where no war 
has been declared or exists. Where peace exists the laws of peace 
must prevail. What we do maintain is, that when the nation is in- 
volved in war, and some portions of the country are invaded, and all 
are exposed to invasion, it is within the power of Congress to deter- 
mine in what States or districts such great and imminent public dan- 
ger exists as justifies the authorization of military tribunals for the 
trial of crimes and offences against the discipline or security of the 
army or against the public safety." 

Limiting myself here simply to the construction of this act of Con- 
gress and to the question in what way it should be executed, I have 
no hesitation in saying that nothing short of an absolute or control - 
ing necessity would give any color of authority for arraigning a citi- 
zen before a military commission. A person charged with crime in 
any of these military districts has rights to be protected, rights the 
most sacred and inviolable, and among these the right of trial by jury 
according to laws of the land. When a citizen is arraigned before a 
military commission on a criminal charge, he is no longer under the 
protection of law, nor surrounded with those safe-guards which are 
provided in the Constitution. 

This act, passed in a time of peace, when all the courts, State and 
federal, are in the undisturbed exercise of their jurisdiction, author- 
izes, at the discretion of a military officer, the seizure, trial, and con- 
demnation of the citizen. The accused may be sentenced to death, 
and the sentence may be executed, without an indictment, without 
counsel, without a jury, and without a judge. A sentence which for- 
feits all the property of the accused, requires no approval. If it 
affects the liberty of the accused, it requires the approval of the 
commanding general; and if it affects his life, it requires the approval 
of the general and of the President. Military and executive authority 
rule throughout, in the trial, the sentence, and the execution. No 
habeas corpus from any State court can be invoked ; for this law declares 
that "all interference, under color of. State authority, with the exer- 
cise of military authority under this act, shall be null and void." 

I repeat it, that nothing short of an absolute necessity can give any 
color of authority to a military commander to call into exercise auch 
a power. It is a power, the exercise of which may involve him, and 
every one concerned, in the gravest responsibilities. The occasion 
for its exercise should be reported at once to the Executive for such 
instructions as may be deemed necessary and proper. 



14 

Questions have arisen whether, under this power, these military 
commissioners can take cognizance of offences committed before the 
passage of the act, and whether they can try and punish for acts not 
made crimes or offences by federal or State law. 

I am clearly of opinion that they have no jurisdiction as to either. 
They can take cognizance of no offence that has not happened after 
the law took effect. Inasmuch as the tribunal to punish, and the 
measure or degree of punishment, are established by this act, we 
must construe it to be prospective, and not retroactive. Otherwise it 
would take the character of an ex post facto law. Therefore, in the 
absence of any language which gives the act a retrospect, I do not 
hesitate to say it cannot apply to past offences. 

There is no legislative power given under this military bill to estab- 
lish a new criminal code. The authority given is to try and punish 
criminals and offenders, and this proceeds upon the idea that crimes 
and offences have been committed ; but no person can be called a 
criminal or an offender for doing an act which, when done, was not 
prohibited by law. 

But as to the measure of punishment, I regret to be obliged to say 
that it is left altogether to the military authorities, with only this 
limitation, that the punishment to be inflicted shall not be cruel or 
unusual. The military commission may try the accused, fix the 
measure of punishment, even to the penalty of death, and direct the 
execution of the sentence. It is only when the sentence affects the 
" life or liberty" of the person that it need be approved by the com- 
manding general, and only in cases where it affects the life of the 
accused that it needs also the approval of the President. 

As to crimes or offences against the laws of the United States, the 
military authority can take no cognizance of them, nor in any way in- 
terfere with the regular administration of justice by the appropriate 
federal courts. 



In the opinion heretofore given upon other questions arising under 
these laws, I gave at large for your consideration the grounds upon 
which my conclusions were arrived at, intending thereafter to state 
these conclusions in a concise and clear summary. I now proceed to 
execute that purpose, which is made especially necessary from the 
confusion and doubts which have arisen upon that opinion in the pub- 
lic mind, caused in part by the errors of the telegraph and the press 
in its publication, and in part by the inaptitude of the general reader 
to follow carefully the successive and dependent steps of a protracted 
l< •. al opinion. 

SUMMARY. 

WHO aim: ENTITLED TO REGISTRATION. 

1. The oath prescribed in the supplemental act defines all the 
qualifications required, and every person who can take that oath is 
entitled to have his name entered upon the list of voters. 



15 

2. The board of registration have no authority to administer any 
other oath to the person applying for registration than this prescribed 
oath; nor to administer any oath to any other person, touching the 
qualifications of the applicant, or the falsity of the oath so taken by 
him. The act to guard against falsity in the oath, provides that, if 
false, the person taking it shall be tried and punished for perjury. 

No provision is made for challenging the qualifications of the appli- 
cant, or entering upon any trial or investigation of his qualifications, 
either by witnesses or any other form of proof. 

3. As to citizenship and residence. 

The applicant for registration must be a citizen of the State and of 
the United States, and must be a resident of a county included in the 
election district. He may be registered if he has been such citizen 
for a period less than twelve months at the time he applies for regis- 
tration, but he cannot vote at any election unless his citizenship has 
then extended to the full term of one year. As to such a person the 
exact length of his citizenship should be noted opposite his name on 
the list, so that it may appear on the day of election, upon reference 
to the list, whether the lull term has then been accomplished. 

4. An unnaturalized person cannot take this oath, but an alien who 
has been naturalized can take it, and no other proof of naturalization 
can be required from him. 

5. No one who is not twenty-one years of age at the time of reg- 
istration can take the oath, for he must swear that he has then at- 
tained that age. 

6. No one who has been disfranchised for participation in any re- 
bellion against the United States, or for felony committed against the 
laws of any State or of the United States, can safely take this oath. 

The actual participation in a rebellion, or the actual commission of 
a felony, does not amount to disfranchisement. The sort of disfran- 
chisement here meant, is that which is declared by law passed by 
competent authority, or which has been fixed upon the criminal by 
the sentence of the court which tried him for the crime. 

No law of the United States has declared the penalty of disfran- 
chisement for participation in rebellion alone. Nor is it known that 
any such law exists in either of these ten States, except perhaps Vir- 
ginia, as to which State special instructions will be given. 

7. As to disfranchisement arising from having held office followed by 
participation in rebellion. 

This is the most important part of the oath, and requires strict at- 
tention to arrive at its meaning. I deem it proper to give the exact 
words. The applicant must swear or affirm as follows: 

"That I have never been a member of any State legislature, nor 
held any executive or judicial office in any State, and afterwards en- 
gaged in an insurrection or rebellion against the United States, or 
given aid or comfort to the enemies thereof ; that I have never taken 
an oath as a member of Congress of the United States, or as an offi- 
cer of the United States, or as a member of any State legislature, or 
as an executive or judicial officer of any State, to support the Consti- 
tution of the United States, and afterwards engaged in insurrection 



16 

or rebellion against the United States, or given aid or comfort to the 
enemies thereof." 

Two elements must concur in order to disqualify a person under 
these clauses: First, the office and official oath to support the Con- 
stitution of the United States: Second, engaging afterwards in rebel- 
lion. Both must exist to work disqualification, and must happen in 
the order of time mentioned. 

A person who has held an office and taken the oath to support the 
Federal Constitution and has not afterwards engaged in rebellion, is 
not disqualified. So, too, a person who has engaged in rebellion, 
but has not theretofore held an office and taken that oath, is not dis- 
qualified. 

8. Officers of the United Stcdes. 

As to these the language is without limitation. The person who has 
at any time prior to the rebellion held any office, civil or military, un- 
der the United States, and has taken an official oath to support the 
Constitution of the United States, is subject to disqualification. 

9. Military officers of any State, prior to the rebellion, are not sub- 
ject to disqualification. 

10. Municipal officers, that is to say, officers of incorporated cities, 
towns, and villages, such as mayors, aldermen, town council, police, 
and other city or town officers, are not subject to disqualification. 

11. Persons who have, prior to the rebellion, been members of the 
Congress of the United States, or members of a State legislature, are 
subject to disqualification. But those who have been members of 
conventions framing or amending the Constitution of a State, prior 
to the rebellion, are not subject to disqualification. 

12. All the executive or judicial officers of any State who took an 
oath to support the Constitution of the United States, are subject to 
disqualification, and in these I include county officers, as to whom I 
made a reservation in the opinion heretofore given. After full con- 
sideration I have arrived at the conclusion, that they are subject to 
disqualification, if they were required to take as a part of their offi- 
cial oath, the oath to support the Constitution of the United Stcdes. 

13. Persons who exercised mere agencies or employments under 
State authority, are not disqualified ; such as commissioners to lay- 
out roads, commissioners of public works visitors of State institu- 
tions, directors of State banks or other State institutions, examiners 
of banks, notaries public, commissioners to take acknowledgments of 
deeds and lawyers. 

ENGAGING IN REBELLION. 

Having specified what offices held by any one prior to the rebel- 
linn, come within the inclining of the law, it is necessary next to set 
forth what subsequent conduct fixes upon such person the offence of 
engaging in rebellion. I repent, that two things must exisl as to any 
person, to disqualify him from voting: first, the office held prior to 
the rebellion, and afterwards, participation in the rebellion. 

14. An acl to iix upon a person the offence of engaging in rebel- 
lion under this law, must be an overt and voluntary act, done with 



17 

the intent of aiding or furthering the common unlawful purpose. A 
person forced into the rebel service by conscription, or under a par- 
amount authority which he could not safely disobey, and who would 
not have entered such service if left to the free exercise of his own 
will, cannot be held to be disqualified from voting. 

15. Mere acts of charity, where the intenl is to relieve the wants 
of the object of such charity, and not done in aid of the cause in 
which he may have been engaged, do not disqualify. But organ- 
ized contributions of food and clothing for the general relief of per- 
sons engaged in the rebellion, and not of a merely sanitary charac- 
ter, but contributed to enable them to perform their unlawful object, 
may be classed with acts which do disqualify. 

Forced contributions to the rebel cause, in the form of taxes or 
military assessments, which a person may be compelled to pay or 
contribute, do not disqualify. But voluntary contributions to the 
rebel cause, even such indirect contributions as arise from the vol- 
untary loan' of money, to rebel authorities, or purchase of bonds or 
securities created to afford the means of carrying on the rebellion, 
will work disqualification. 

16. All those who, in legislative or other official capacity, were en- 
gaged in the furtherance of the common unlawful purpose, where the 
duties of the office necessarily had relation to the support of the re- 
bellion, such as members of the rebel conventions, congresses, and 
legislatures, diplomatic agents of the rebel confederacy, and other 
officials whose offices were created for the purpose of more effectually 
carrying on hostilities, or whose duties appertained to the support of 
the rebel cause, must be held to be disqualified. 

But officers who, during the rebellion, discharged official duties not 
incident to war, but only such duties as belong even to a state of 
peace, and were necessary to the preservation of order and the ad- 
ministration of law, are not to be considered as thereby engaging in 
rebellion or as disqualified. Disloyal sentiments, opinions, or sympa- 
thies would not disqualify, but where a person has by speech or by 
writing, incited others to engage in rebellion, he must come under 
the disqualification. t . 

17. The duties of the board appointed to superintend the elections. 
This board, having the custody of the list of registered voters in 

the district for which it is constituted, must see that the name of the 
person offering to vote is found upon the registration list, and if such 
proves to be the fact, it is the duty of the board to receive his 
vote. They cannot receive the vote of any person whoso name is not 
upon the list, though he may be ready to take the registration oath. 
and although he may satisfy them that he was unable to have his 
name registered at the proper time, in consequence of absence, sick- 
ness, or other cause. 

The board cannot enter into any enquiry as to the qualifications of 
any person whose name is not on the list, or as to the qualifications 
of any person whose name is on the list. 

18. The mode of voting is provided in the act to be by ballot. The 
board will keep a record and poll-book of the election, showing the 



18 

votes, list of voters, and the persons elected by a plurality of the votes 
cast at the election, and make returns of these to the commanding 
general of the district. 

19. The board appointed for registration and for superintending the 
elections, must take the oath prescribed by the act of Congress, ap- 
proved July 2, 1862, entitled, "An act to prescribe an oath of office-" 
1 have the honor to be, with great respect, 

HENRY STANBERY, 

Attorney General. 



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LIBRARY OF CONGRESS 



013 786 472 1 • 



